lawyer: A.G. v.d. Plas
DISTRICT COURT OF
AMSTERDAM
[COPY]
Case number: 13/067455-99
Date of judgment: 21 May 2001
Contentious matter
ABRIDGED JUDGMENT
of the district court of Amsterdam, 4th three-judge division
B, in the criminal proceedings against:
FIJNEMAN, Geerdina Johanna
Cornelia
born at Tilburg on 26 March 1945,
registered address in the municipal personal records database
16-3 Van Kinsbergenstraat, 1057 PP Amsterdam, and in fact residing at
that address.
The court has deliberated in view of the investigation at the hearings
of 23 March 2001 and 7 May 2001.
1. Charges
The defendant has been charged with that which is set forth in the
summons as altered at the hearing of 23 March 2001. Copies of the summons and
the demand for alteration of the charges have been attached to this judgment as
Annexes 1 and 2. The altered charges are deemed to be inserted herein.
2. Preliminary questions
At the hearing Counsel for the defense asserted that the Public
Prosecutor should be barred from prosecuting because he has acted in violation
of Article 9 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR) and that in doing so he is seriously violating the
principles of proper criminal prosecution.
The court's considerations with respect to the defense brought by
Counsel for the defense are as follows:
In the opinion of the Court, the question whether in this case the
defendant can invoke freedom of religion, as it is protected by Article 9 of
the ECHR, relates to the punishable nature of the acts with which the defendant
is charged and not to whether the Public Prosecution Service should be allowed
to prosecute.
The court therefore rejects this defense.
3. Appreciation of the evidence
3.1
The court deems it legally and conclusively proved that
in Amsterdam on 6 October 1999 the defendant deliberately transported
approximately seventeen and a half liters of liquid containing DMT ingredients
to a meeting of the "Santo Daime" church community and had had this
liquid present in her home.
4
The evidence
The court bases its decision that the defendant did in fact commit the
acts considered proved on the facts and circumstances incorporated in the
evidence.
5
Punishable nature
of the acts
The argument put forward by the defense as the most consequential with
respect to the non-punishable nature of these acts is that the liquid
containing DMT does not come under the provisions of the Opium Act, in spite of
the fact that the DMT is mentioned in the Act and is included in List 1 of the
Opium Act. The defense argued that plants or parts of plants which are not
included in the list do not come under the Opium Act, even if those plants or
parts of plants contain substances which are included in the list. This follows
from the order of the Supreme Court of the Netherlands made on 29 November
1994, Dutch Court Reporter 1995/292 (Qat Order).
The defense has also
asserted that in the order made on 18 November 1997, Dutch Court Reporter
1998/213 (Mushroom Order), the Supreme Court of the Netherlands wrongly
considered that pursuant to the Opium Act, as interpreted in the light of the
Convention on Psychotropic Substances (hereinafter also referred to as: the
Convention), plants and parts of plants which have undergone "any form of
processing" must be regarded as preparations.
The defense referred
to the letter from Herbert Schaepe, Secretary of the Board of the United
Nations International Narcotics Control Board, submitted by the Public
Prosecutor, which includes the following passage:
No plants (natural
materials) containing DMT are at present controlled under the 1971 Convention
on Psychotropic Substances. Consequently, preparations (e.g. decoctions)
made of these plants,
including ayahuasca are not under international control and,
therefor subject to any
articles of the 1971 Convention."
The defense also referred to the interpretation of the Convention in
the Commentary on the Convention on Psychotropic Substances, done at Vienna on
21 February 1971.
According to the defense,
this implies that - contrary to the order made by the Supreme Court of the
Netherlands, following the advocate general, in the Mushroom Order - infusions
of plants or parts of plants which contain a substance on the list, if they are
the result of a simple preparation, fall outside the scope of the Convention
and therefore fall outside the scope of the Opium Act.
The court can leave
open the question whether - contrary to the order of the Supreme Court of the
Netherlands in the Mushroom Order - infusions which are the result of a simple
preparation fall outside the scope of the Convention and whether this means
that they also fall outside the scope of the Opium Act, since in the opinion of
the court it cannot be held that the liquid in question, the ayahuasca, is the
result of a simple preparation.
The report of expert De
Wolff states that the ayahuasca is prepared by combining the leaves of Rainha
(Psychotria viridis), which contain DMT, with Jagube (Banisteriposis caapi),
which serves as a source of MAO inhibitors. Without these inhibitors DMT has no
effect if taken orally.
The ayahuasca is
therefore a blend of infusions of different plants, in which those different
plants are necessary in order to achieve the desired effect. There is therefore
no question of a simple infusion of one plant containing substances included in
List I of the Convention.
The contents of the
above-mentioned letter from Herbert Schaepe cannot affect this conclusion, if
only because it is not implied by the Convention that the interpretation of the
Convention by the United Nations International Narcotics Control Board must be
regarded as official and binding.
The Court therefore rejects this defense.
Counsel for the defense further takes the view that the defendant's
actions are protected by Article 9 of the ECHR. With respect to this view she
has advanced the following arguments:
On 6 October 1999 the defendant led the church community CEFLU
Cristi-Céu da Santa Maria, hereinafter also referred to as the Santo Daime
Church. For the historical and international background of this church, Counsel
for the defense refers to the expert's report by the Brazilian anthropologist
E.J. Baptista de Neves MacRay, employed at the University of Bahia in Brazil.
The tea which was
given to the members of this church during its worship service, ayahuasca,
contained the substance DMT, which is prohibited by virtue of Section 2 of the
Opium Act. However, the use of ayahuasca is an integral part of the worship
service of this church. The prohibition therefore constitutes an unlawful restriction
of the defendant's religious freedom.
According to Counsel
for the defense, the expert's reports which have been submitted, by experts
including Dr R. Kranenborg, theologian and religious studies expert at the
Vrije Universiteit of Amsterdam, Dr F.A.M. Snelders, historian at the Vrije
Universiteit of Amsterdam, the letter from B.C. Labuschagne, lawyer and
philosopher of law at the University of Leiden, and the report by the expert
Professor Dr F.A. de Wolff, clinical chemist and toxicologist, provide
sufficient grounds for this conclusion.
The court considers as follows:
Pursuant to Article 9, paragraph 2 of the ECHR, the freedom to practice
one's religion can be subjected to no other restrictions than those which are
provided for by law and are necessary in a democratic society in the interest
of public safety, for the protection of public order, health or decency or for
the protection of the rights and freedoms of others.
The defendant was arrested in a space which, as appears from the
description made by the reporting officer, obviously served as a church. In
this space, the reporting officer saw an altar at which two persons were
pouring a brown liquid from jugs into small glasses and distributing them to
people who were waiting. On the altar the reporting officer also found joints.
As evidenced by the report of police expert R. Jellema dated 15 October
1999, these 17.5 liters of brown liquid contained approximately 3 - 4 grams of
DMT or N-N-dimethyltryptamine, a substance included in List 1, subsection C of
the Opium Act. The cigarettes contained cannabis.
In the aforementioned report by the anthropologist MacRae it is stated
that the Santo Daime religion originated in Brazil in about 1920 and that in it
Indian and African influences were combined with Christian values and ideas.
New rituals were added to old customs such as drinking ayahuasca.
In accordance with the
Articles of Association of the church community CEFLU Cristi-Céu da Santa Maria
dating from 20 April 1995, of which the defendant was one of the founders, the
objective of the church community is to practice and reflect upon the doctrine
of the Santo Daime. The church community is affiliated with the Centro Eclético
da Fluente Universal Raimundo Irineu Serra-CEFLURIS, whose headquarters are at
Céu do Mapiá in Brazil. The objective of the community is based on that of the
CEFLURIS and can also be more closely described as to examine, study and put
into practice the Doctrine of Santo Daime and by means of its work and rituals
to awaken the divine spark in mankind, with a view to integration with
Divinity.
The historian Snelders
concludes in his report, mentioned above, that the use of psychoactive
substances, particularly hallucinogens, was an integral part of many
pre-industrial cultures and that this use still takes place in syncretic
religions which have arisen since the 19th century and have combined
traditional usage with Christian religious ideas. The Santo Daime church can be
placed in this history of the use of psychoactive substances.
The theologian and
religious studies expert Kranenborg states in his report, mentioned above, that
from the point of view of religious phenomenology the combination of
hallucinogenic substances and religion is important in many religions. The use
of entheogens always takes place communally, within a ritual framework.
Ayahuasca is one of the most frequently used entheogens. Since the Santo Daime
Church has chosen to use this substance as a method of procuring a religious
experience, it is essential to religious life and religious practice and it can
also be said that the Santo Daime Church cannot do without this substance.
On the basis of these expert's reports and the Articles of Association,
the Court is of the opinion that the Amsterdam church CEFLU Cristi-Céu da Santa
Maria must in fact be regarded as a church community. The doctrine professed
must be regarded as a religious creed and the use of the tea, ayahuasca, or the
Daime, being the most important sacrament in the worship of the Santo Daime
church, must be regarded as an essential part of the religious life of the
faithful. The defendant declared at the hearing that the Santo Daime church
gives her support and strength and that the ayahuasca is used as a sacrament
together with dancing and the singing of hymns. The defendant's conviction must
therefore be regarded as a religion, which, together with the practice of the
holy sacrament in which this religion is expressed, enjoys the protection of
Article 9 of the ECHR.
By virtue of the Convention on Psychotropic Substances and the
prohibition in Section 2 of the Opium Act and the occurrence of DMT on List 1
of that Act, DMT is a prohibited substance. The Public Prosecution Service has
argued that the restriction of the defendant's right to practice her religion
freely is justified for reasons of public health.
The Public Prosecution Service has not asserted that other purposes
mentioned in Article 9 of the ECHR, such as public order or public decency,
justify an infringement in this case. It is true that a statutory prohibition
is involved which was made in the interest of a legitimate purpose, stated in
the second paragraph of Article 9 of the ECHR, namely public health, but it is
not sufficient for the court to establish that the Opium Act serves that
legitimate purpose. Pursuant to court decisions made by the European Court of
Human Rights, the court must assess in concrete terms whether in the present
case public health does in fact justify a restriction of religious freedom.
In his expert's report - written at the request of the supervisory
judge - Professor Dr F.A. de Wolff describes how unwelcome effects of a mild
nature, such as nausea, but also more serious symptoms of toxicity may occur,
for example a rise in blood pressure or an accelerated heart beat. He also
discusses the interaction between substances in ayahuasca and those in
medicines and foods. He is of the opinion that a reliable picture of the
possible risks involved in using ayahuasca is provided by the questionnaires
about the health status of individual attendants made available to those
attending the meetings, and the health notice distributed, which contains
information about contraindications relating to the use of ayahuasca in
combination with certain foods or medicines. According to the expert, the
religious context ensures that the production of the ayahuasca and its use
during religious meetings is strictly regulated. Moreover, consumption is
linked to rituals and always takes place in the presence of others who are familiar
with the effects.
On the basis of the
above, the expert De Wolff concludes that the use of ayahuasca may involve
health risks in individual cases, that the information provided by the Santo
Daime church is in general correct and adequate and that the limited
availability of ayahuasca and the strictly regulated circumstances in which its
consumption takes place constitute protection against abuse. In view of this,
the final conclusion of the report is that, especially considering the limited
size of the Santo Daime church, it is not plausible, on the basis of extant
scientific knowledge, that ayahuasca consumption forms a threat to public
health. At the hearing De Wolff also stated with respect to the combination of
ayahuasca and cannabis that the lack of scientific studies of the combined
effect of these substances does not constitute a reason for altering the
conclusions, since he took this into account in drawing up his report and there
are insufficient indications that the conclusions of the report might not be
valid.
In view of the insight provided by De Wolff's report into the
composition of ayahuasca and the health risks attached to it, the court takes
the view that drinking ayahuasca in the religious context of the Santo Daime
church does not involve any appreciable risks to public health. It is true that
in individual cases the substance DMT which is present in the Daime may
constitute a health risk, but in the opinion of the court the information
provided about this and the controlled use within the religious community
constitute a sufficient safeguard against unacceptable health risks in those
cases in which consumption of the tea is inadvisable.
The safeguards referred to by De Wolff, based on the religious context,
are furthermore confirmed in the reports by Kranenborg and Snelders.
In addition, no
concrete facts and circumstances have been put forward by the Public
Prosecution Service on the basis of which it can be said that there is a
realistic threat to public heath attached to the ritual use of ayahuasca.
Inasmuch as it has been asserted that the defendant might have been
expected to ask for permission on the grounds of Section 6 of the Opium Act,
the Court observes that the defendant cannot be reproached with not having done
so. Use as a sacrament is not included in the provisions of Section 7 of this
Act, so that she cannot be eligible for permission.
In view of the above, the Court is of the opinion that in the
defendant's case the statutory prohibition against possessing, supplying and
distributing DMT, which is based on the Convention, and as a result of which
she cannot receive the most important sacrament of her religion during the
worship service, constitutes such a serious infringement of her religious
freedom that this infringement cannot be regarded as being necessary in a
democratic society.
Furthermore, in this
case the interest of the defendant, namely that no infringement should be made
of her right to religious freedom as guaranteed by the ECHR, must be weighed
against the interest of the State, namely that it must fulfil its duty to
prohibit DMT, a duty arising from the Convention on Psychotropic Substances.
Considering the weight which must be attached to religious freedom and the
circumstance that, as was considered above, there are no appreciable health
risks involved in the ritual use of ayahuasca, the Court is of the opinion that
in this case the greater weight should be attached to the protection of
religious freedom. The conclusion is that in this case Section 2 of the Opium
Act should not apply.
The defendant will be acquitted from all further prosecution since in
these circumstances the facts which have been proved do not constitute
punishable offences.
6
Decision
The court declares it to be proved that the defendant committed the
acts with which she was charged as stated hereinbefore under heading 3.
The court declares that any more or other charges against the defendant
than those declared proved hereinbefore have not been proved and acquits the
defendant thereof.
The court declares that the charges proved are not punishable and
acquits the defendant from all further prosecution in respect thereto.
This judgment was passed by
G.H. Marcus presiding judge,
E.J. Weller and M.F. Wagner judges,
in the presence of A.C. Hofstra
court clerk,
and pronounced at the public hearing of this court on 21 May 2001.
[signature] [signature]
[signature]
[certified
to be a true copy
of
the original
[initialled]
Court
Clerk of the District Court
of
Amsterdam]